Monday, 14 December 2015


© 2015,

“It is beyond doubt that there are certain canons of judicial conduct to
which all tribunals and persons who have to give judicial or quasijudicial
decisions ought to confirm. The principles on which they rest
are, we think, implicit in the rule of law. Their observance is demanded
by our notional sense of justice”.
- The Committee on Minister’s Powers

In the olden days of laissez-fair practice, when industrial relations were
governed and administered by the unscrupulous and harsh weighted
law of hire and fire, the management was in supreme command and at
its best with the passage of time, notions of social justice developed
and the expanding horizons of socio- economic justice necessitated
statutory protection to the workmen. The freedom to hire men/women is
embedded in the management philosophy and thinking and the liberty
is restrained to firing them arbitrarily or at its own will.
It is too late in the day now to stress absolute and unconditional
freedom of an employer to impose any condition which he likes on his
employee. For the management, to get rid of an unproductive,
undesirable and erring employee, shall have to initiate disciplinary
action against him as per the provisions of Standing Orders or Service
Rules and by following principles of natural justice in holding the
domestic enquiry for proving the alleged misconduct against him.
The handling of the disciplinary matters has become the most difficult
task of the management as well as for the defence. For the
management, it is an extremely volatile matter in industrial relations
and any pitfall on this score is bound to fill a cup of miseries for the
management. He cannot axe an employee at his own will. On the other
hand for the defence representative, it is not only matter of defending
the delinquent but his ability to lead the workmen is also at test.


It is said that principles of natural justice is of very ancient origin and
was known to Greek and Romans. The Principles were accepted as
early as in the days of Adam and of Kautilya’s Arthashastra. According
to the Bible, when Adam & Eve ate the fruit of knowledge, which was
forbidden by God, the latter did not pass sentence on Adam before he
was called upon to defend himself. Something was repeated in case of
Later on, the principle of natural justice was adopted by English Jurist
to be so fundamental as to over-ride all laws.
The principles of natural justice were associated with a few ‘accepted
rules’ which have been built up and pronounced over a long period of
time. The word ‘Natural Justice’ manifests justice according to one’s
own conscience. It is derived from the Roman Concept ‘jus - naturale’
and ‘Lex naturale’ which meant principle of natural law, natural
justice, eternal law, natural equity or good conscience. Lord
Evershed, Master of the Rolls in Vionet v Barrett (1985, 55LLJ QB,
39, Page 45) remarked, “Natural Justice is the natural sense of what is
right and wrong.”


1. Nemo debet esse judex in propria causa: No man must sit in
judgment in his own cause, or the deciding authority must be
impartial and without bias.
It is also called as the ‘doctrine of bias’ as the judge may have a
prejudice in the case. It has been pithily put by Sir Edward Coke,
namely, Vacate, Interrogate and Judicate, i.e., call, question, and
adjudicate. However, this concept has undergone lot of changes in
recent times, but fundamental still stands the same.

Types of Bias: There are three types of Bias -

(i) Pecuniary Bias:
1. Dimes vs. Grant Junction Canal. (1852,3 HLC 579).
2. Jeejeebhoy vs. Asst. Collector of Thana. (AIR 1965 SC 1096)

(ii) Personal Bias:
1. Personal friendship - A.K. Kraipak’s Case.
2. Personal Hostility - Mineral Development Ltd. v State of Bihar,
(AIR 1960 SC 468 - also AIR 1976 SC 2428)
3. Family relationship.
4. Professional relationship.
5. Employer & Employee.
(iii)Bias as to Subject Matter:
1. Partiality - State of U.P. v Mohammed Noor
(AIR 1959 SC 86 also AIR 1967 SC 4080)
2. Departmental Bias - Gullapalli Nageswara Rao v APSRTC.
(AIR 1959 SC 308)
3. Prior Utterances and Pre-judgment of issues - K.S. Rao v State of
Hyderabad. (AIR 1957 AP 614)

Real Likelihood of Bias
“Nothing is to be done which creates even a suspicion that there has
been an improper interference with the course of justice”
-Lord Hewart C.J.
“Justice must be rooted in confidence; and confidence is destroyed
when right minded people go away thinking”.
- Lord Denning.
2. Audi Alteram Partem: Hear the other side or both the sides must
be heard or one should not be condemned unheard. In other words, No
person accused of any charge or likely to suffer any civil
consequences, must be adjudged unless and until he is aware of the
proceedings together with a notice thereon and an opportunity to
present his case fully.
(i) Notice
(ii) Hearing - Ridge v Baldwin,

State of Kerala v K.J. Shaduli, (AIR 1977 SC 1627)
Hiranath Mishra v Principal,Rajendra Med.College,(AIR 1973 SC 1260).
The right of representation by a lawyer is not considered to be a part of
natural justice and it cannot be claimed as of right, unless the said
right is conferred by statute. Under the Industrial Disputes Act, 1947,
the appearance of advocate is allowed with the permission of the
tribunals concerned.

3. Reasoned Decisions or Speaking Orders
It is an order speaking for itself and giving reasons. Lord Denning
says, the giving of reasons is one of the fundamentals of good

Three Grounds on Which it Stands
(i) The party aggrieved has the opportunity to demonstrate before the
appellate or revisional court that the reasons which persuaded the
authority to reject his case were erroneous;
(ii) The obligation to record reasons operates as a deterrent against
possible arbitrary action by the executive authority invested with
judicial power; and
(iii) It gives satisfaction to the party against whom the order is made.
The power to refuse to disclose reasons in support of the order is
of an exceptional nature and it ought to be exercised fairly,
sparingly and only when fully satisfied by the exigencies of
uncommon situations.

1. Siemens Engineering v Union of India (AIR 1976 SC 1785).

2. Maneka Gandhi v Union of India. (AIR 1978 SC 597).
The principles of natural justice have for sometime past, come into
common use in our country. But it is difficult to ascertain from the law
reports or other source as to how these principles came to be applied
in the field of Industrial Law. There is no legal provision found
anywhere which prescribes them.
The Patna High Court in Raj Kishore Prasad Jaiswal v Subak Narain,
(AIR 1959) has aptly observed:
“It is well-established rule of law that rule of natural justice is applied
only where the law itself is silent and is not inconsistent with what it
provides, but where any provision as to the rule of natural justice is
expressly or by necessary implication negatived by law that cannot be
a ground for holding that the enactment giving that law is ultra vires or
The Principles of natural justice are enforceable on all courts of law,
general or special, all tribunals statutory or otherwise, and all persons
or bodies exercising a judicial or quasi-judicial function by statute or by
agreement between the parties. This applies equally to any domestic

In the Province of Bombay v Madhukar, AIR 1952 Bom. 37, 46 Vyas
J concluded.

“It is clear that all that is meant by compliance with the rules of natural
justice by a domestic tribunal is that the tribunal must act honestly and
in good faith, and must give the delinquent a chance of explanation
and defence. If its rules postulate an enquiry, the delinquent must have
a reasonable opportunity of being heard and of correcting and
contradicting relevant statement prejudicial to his view.”
Model Standing orders in its sub-clause (4) of clause 14 provides that
no order or dismissal shall be made unless the workman concerned is
charge-sheeted and given adequate opportunity to explain his alleged
misconduct. Standing orders, applicable to an industrial establishment
generally prescribe a procedure for initiating disciplinary action against
workmen. While taking so, it is always necessary to follow a set of
approved and well accepted procedures.
Sri S. Chakravarthi, in his book “Natural Justice”, has very aptly
summarised the constituents of the rules of natural justice. They are:
Ø  Substantial requirement of justice shall not be violated.
Ø  The tribunal must give both the parties an opportunity of being
heard and stating their case and view.
Ø  Notice to be given to the parties about when the judge will proceed
with the matter.
Ø  The tribunal should act honestly and impartially.
Ø  Must not be at the dictation of others to whom no authority has
been given by law.
Ø  There must not be malversation of any kind.
Ø  A person cannot be a judge in his own cause.
Ø  The least bias or prejudice on the part of the person deciding the
cause will vitiate the order.
The principles of natural justice could therefore, be summarised as

1. That every person whose rights are affected must have a
reasonable notice of the matter he has to meet.
2. That he must have reasonable opportunity of being heard in his
3. That the hearing must be by an impartial person, i.e. a person who
is neither directly nor indirectly a party to the case. One who has
an interest in litigation is already biased against the party
4. That the authority hearing the case must act in good faith and not
arbitrarily but reasonably.


The principles of natural justice are not recognized as fundamental
rights under the Constitution of India (vide S.C. in the A.K. Raipak Vs.
Union of India). Since the term ‘Natural Justice‘ is vague, it implies a
number of other requirements, observance of which is essential if one
has to comply with the principles of Natural Justice. Moreover Natural
Justice in favour or against depends of varies from case to case.
Therefore it becomes all the more difficult to adhere to principles of
Natural Justice.

In one case the Madras High Court has set out the Requirements of
Natural Justice in the following words:
All enquires, judicial, departmental or other, into the conduct of
individuals must confirm to certain standards;
1. The person proceeded against must be given a fair and reasonable
opportunity to defend himself.
2. The person charged with the duty of holding the enquiry must
discharge that duty without bias and certainly without
3. He must conduct himself objectively and dispassionately not merely
during the procedural stages of the enquiry, but also in dealing with
the evidence and the material on record when drawing up the final
4. The conclusion must be rested on the evidence and not on matters
outside the record, and
5. That it is not based on misreading of the evidence.
C. Gabriel vs. State of Madras, (1959 2 M.L.J. 15 MAD HC.)
In another case, Allahabad High Court has summarised the principles
of Natural Justice in the following words:
1. That every person whose civil rights are affected must have a
reasonable notice of the case he has to meet.
2. That he must have reasonable opportunity of being heard in his
3. That the hearing must be by an impartial tribunal, i.e., the case,
Nemo debet esse judex in propria cause.
4. That the authority must act in good faith, and not arbitrarily but
reasonably (Mukhtiar Singh Vs. State of U.P. AIR 1957 ALL. 297,
Requirements of the principles of natural justice are varied. They are:
1. Variation due to subject mater of the dispute.
2. Variation due to different constitution of the tribunals.
3. Variation due to different circumstances
4. Variation due to different facts in different cases.
5. The provisions of natural justice exclude oral enquiries and
preliminary enquires.
6. Article 311(2) of the Constitution speaks of “Reasonable
Opportunity” but substance of the constitutional guarantee is
nothing but compliance with the principles of Natural justice.
The principles of Natural Justice can be said to be inferred from the
protection given to employees under article 311 that they would be
given reasonable opportunity to defend themselves, (ART 311 (1) says
no person who is a member of the civil service of the Union of an all
India Service, or holds a civil post under the Union shall be dismissed
or removed by an authority subordinate to that by which he was

Reasonable Opportunity: As explained in Khem Chand Vs. Union of
India, by Chief Justice S.R. Das, “reasonable opportunity” is:
(a) An opportunity to deny his guilt and establish his innocence which
he can only do, if he is told what the charges leveled against him
are and the allegations on which such charges are based,
(b) An opportunity to defend himself by cross examining the witness
produced against him and by examining himself or any other
witnesses to support his defence and finally,
(c) An Opportunity to make his representation as to why the proposed
punishment should be inflicted on him which he can do only if the
competent authority, after the enquiry is over and after applying his
mind to the gravity or other wise of the charges proved against the
Government Servant, tentatively proposes to inflict one of the three
major punishments and communicates the same to the Govt.
Servant. Khem Chand Vs. Union of India (1959 I ILJ 167 175, Air
1958 S.C. 300)

The salient features of Natural Justice are summed up as follows:
1. Allegations should be specific and precise and ought to be
produced in writing. The charges framed against the workman on
the basis of allegations should be such as are violative of specific
provisions of the service rules or the notified standing orders
applicable to the establishment.
2. Reasonable time should be given to the delinquent employee to
reply to the charge-sheet and prepare of his defence, if a formal
enquiry is to be conducted.
3. Enquiry officer appointed for conducting domestic enquiry should
be totally un-biased and not connected with the incident. He should
not be allowed to appear as a prosecution witness himself.
4. All prosecution witnesses should be examined individually in the
presence of the delinquent employee and their statements
recorded. Pre-recorded statements should not be brought on the
record of the enquiry proceedings.
5. When a statement of a particular witness is being recorded the
other prosecution witnesses should not be present to hear the
6. The delinquent employee or his Defence Representative should be
given ample opportunity to cross examine the witnesses and the
replies of the witnesses should be recorded by the enquiry officer.
7. The delinquent employee should not be examined as a witness
unless he volunteers himself, as none could be compelled to give
evidence against himself.
8. Delinquent employee should be allowed to take assistance from a
co-employee or a union official of his choice, although, legal
practitioner may not be permitted for this purpose.
9. The delinquent employee should be given reasonable opportunity
to produce and examine defence witnesses.
10. Enquiry officer should base his findings only on the evidence
tendered in the enquiry proceedings. He should not rely upon any
record or document which is not brought to the notice of the
delinquent employee.
11. Ex-parte decisions should not be taken as far as possible unless
the enquiry officer is fully convinced that the delinquent employee
does not want to appear before him or wants to drag on the
proceedings, unnecessarily.

It is to be understood that the ultimate objectives of
departmental/domestic probe is to determine or to draw inference
whether punishment should or should not be awarded to on employee
and so the principles of Natural Justice are applicable to domestic
enquires even though there may not be any rule or provision to
that effect.

The principles of natural justice are easy to proclaim, but their precise
extent is far less easy to define. The rule against bias is one thing. The
right to be heard is another. These two rules are characteristic of what
is often called ‘natural justice’. They are twin pillars supporting it. They
have been put into two words- Impartiality & Fairness.
The Principles of natural justice are considered to be more important to
ensure justice to the workman whose conduct is being enquired into.
Hence, it is essential to understand its scope and extent and
implications for purpose of domestic enquiry. We come across new
cases every day but basic structure about the machinery entrusted with
the task of holding departmental enquiry and coming to a decision,
remains the same. Therefore, the employer should give proper
attention to this aspect of the disciplinary action so that pit falls on this
score could be avoided.